Terms of Use

1) KinChip – Website and Application Terms of Use

1.1 General

1. These Terms of Use set out the terms and conditions governing your use of the Application, Website and Product.
2. By downloading or installing the Application or accessing or using the Website, you indicate that you accept these Terms of Use and that you agree to abide by them as a legally binding agreement between you and KinChip. These Terms of Use take effect on the date on which you download and install the Application or access or use the Website (as the case may be).
3. If you do not agree to be bound by these Terms of Use, you must cease downloading and installing the Application or accessing or using the Website immediately (as the case may be).
4. You acknowledge that these Terms of Use are entered into by and between you and KinChip, the owner and operator of the Application and Website.
5. KinChip reserves the right to, at any time and without notice, modify or discontinue, temporarily or permanently, any or all parts of the Application, Website or Product, all without liability to you, except where prohibited by law.

1.2 Modification

1. KinChip reserves the right, at its sole discretion, to modify these Terms of Use at any time and without prior notice.
2. If KinChip modifies these Terms of Use, it will post the modification via the Application, on the Website or otherwise provide you with notice of the modification. Your continued access or use of the Application or Website (as the case may be) after KinChip has posted a modification via the Application, on its Website or otherwise provided you with notice of a modification will constitute your acceptance of the Terms of Use as modified. If the modified Terms of Use are not acceptable to you, you must cease accessing or using the Application or Website immediately (as the case may be).

2) Use of the Application, Website and Product

1. The use of the Application, Website and Product is for your personal use only. You may not use the Application, Website or Product for any other purpose.
2. KinChip grants you a limited, non-sublicensable, non-exclusive, non-transferable and revocable licence to install one copy of the Application on your Device.
3. You acknowledge that you have no rights in, or to, the Application, Website or Product or the technology used or supported by the Application, Website or Product, other than the right to use the Application, Website or Product in accordance with these Terms of Use.
4. We may charge you a fee to download the Application, create an Account or to otherwise access the Product. You agree to us charging you this fee in the manner set out in your Account information.
5. Your mobile or internet provider’s rates and fees may apply for downloading and accessing the Application or Website and content accessible through the Application and Website. You acknowledge that you are solely responsible for any rates and charges incurred in connection with downloading, accessing, viewing or using the Application and Website.
6. In consideration for the rights granted to you under these Terms of Use, you agree to grant us the right to:
   1. allow the Application to use all of the features and functionality of your Device (including the camera and location services while you are using the Application) and the storage, bandwidth and the processor on your Device;
   2. disclose personal information or sensitive information to your health care professionals or other third parties that you have permitted to receive this information; and
   3. to provide advertising and other information to you, and to allow our business partners to do the same.
7. Except as required by law, these Terms of Use do not give you any right to receive any upgrades or updates in relation to the Application, Website or Product or to any maintenance releases, patches, fixes, extensions or enhancements developed by KinChip or any Related Party.
8. You agree to comply with any applicable law and regulation relating to downloading, or technology used or supported by, the Application.
   1. You agree not to:
   2. duplicate, copy, transmit, distribute, licence, sublicence, sell, rent, lease, transfer, provide, assign, reproduce alter or otherwise commercially exploit the Application, Website or Product or to adapt or modify the whole or any part of the Application, Website or Product in any way whatsoever;
   3. reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, algorithms, underlying ideas, file formats or non-public APIs to the Application, Website or Product;
   4. remove or obscure any proprietary or other notices contained in the Application, Website or Product;
   5. develop a shell, wrapper or similar environment around the Application, Website or Product code libraries;
   6. on-sell any software developed using the Application, Website or Product (including any software using, based on or incorporating any aspect of the Application, Website or Product);
   7. supply any part of the Application, Website or Product, including any Application, Website or Product code library to any third party;
   8. create, use, or on-sell any end-user applications (including any software using, based on or incorporating any aspect of the Application, Website or Product) that allows such software to run on remote or multiple real or virtual machines or CPUs,
   9. combine or incorporate the whole or any part of the Application, Website or Product in any other program, product, system or service;
   10. use the Application, Website or Product to advertise or spam;
   11. upload software viruses, trojans or any other computer code, files or programs that are designed or intended to ransom, disrupt, damage or limit the functioning of the Application, Website, Product, servers or networks, or to damage or obtain unauthorised access to any data or other information of any third party;
   12. impersonate any person or entity; and
   13. use the Application, Website or Product in any unlawful, illegal, abusive, threatening, defamatory, violent or fraudulent manner or in any way that is invasive of another’s privacy or could harm the Application, Website or Product or impair or affect anyone else’s use of the Application, Website or Product.

3) Push and email notifications

1. During the installation of the Application, the Application will ask if you would like it to send you “Push Notifications”, which may include alerts, badges, banners and/or sounds on your Device. If you allow Push Notifications then the Application will generate Push Notifications and you acknowledge and consent to receive these.
2. Push Notifications may be sent to you by us or by third parties that use the Application to display their Third Party Content.
3. If you elected to receive Push Notifications, you can choose to stop receiving Push Notifications at any time by selecting the relevant option in the Application’s settings or by deleting the Application from your Device.
4. You agree to us and third parties sending you emails (Email Notifications). You acknowledge and agree that receipt of Email Notifications is dependent on the operation of your Device and public and/or private telecommunications networks. We will not be responsible or liable for any costs or damages incurred by you not receiving Email Notifications or by the insufficient operation of your Device or public and/or private telecommunications networks.
5. You can opt out of receiving Email Notifications at any time by clicking the ‘Unsubscribe’ link that appears at the bottom of Email Notifications.

4) Termination

1. We may terminate these Terms of Use or cancel or suspend your Account and/or use of the Application or Website, in our sole discretion, at any time and without notice to you.
2. These Terms of Use will automatically terminate if you breach these Terms of Use.
3. On termination of these Terms of Use, we may disable any Account and/or prevent you from using the Application, Website or Product and you must:
   1. (i) cease using or accessing the Application, Website and Product;
   2. (ii) immediately delete or remove the Application from any Device (if applicable);
   3. (iii) immediately destroy all copies of the Application in your possession or control (if applicable); and
   4. (iv) if we request, confirm within a reasonable time that you have destroyed all copies of the Application.
   5. (d) You can terminate these Terms of Use at any time by:
   6. (i) closing your Account;
   7. (ii) deleting the Application from all Devices (if applicable); and
   8. (iii) destroying all copies of the Application in your possession or control.

5) Intellectual Property

1. You acknowledge that KinChip is the owner of the Application, Website and Product and that all Intellectual Property Rights in relation to the Application, Website and Product are owned by KinChip.
2. Nothing in these Terms of Use operate to transfer ownership in, or otherwise grant any rights in, any Intellectual Property Rights of KinChip or any third party.

6) Privacy

1. These Terms of Use also include the terms and conditions set out in KinChip’s Privacy Policy, available at http://kindom.wpengine.com/privacy-policy/.
2. You agree that KinChip may use your information and information about your use of the Application, Website and Product in accordance with our Privacy Policy.
3. Without limiting the generality of clause 6(b), by downloading, installing, signing up to, using or accessing the Application or Website you agree that we may disclose, and consent to us disclosing:
   1. personal information and sensitive information that you have provided to us, to any of your health care professionals and other third parties, but only to the extent that you have permitted us to do so; and
   2. information you have provided to us and information regarding your use of the Application, Website and Product to third parties for the purpose of those third parties using that data for their own internal or commercial purposes, provided that we first anonymise the information such that you cannot be identified prior to disclosing it.
4. You acknowledge that KinChip may be required to disclose your information by law, under compulsion of law by a court or a government agency.

7) Downloadable material

We make downloadable documents, content, software and other materials available on the following conditions:

1. material downloadable or made available within the Application or Website is provided on the basis that you will conduct any necessary virus scanning and other checks so as to protect your data, Device and software systems and those of any other person;
2. you agree that we will not be liable to you for any Loss however caused (including by negligence) that arises in any way from the use of the downloaded or available material; and
3. you will not provide the downloaded or available material to another party and, if you do, you will bring that other party’s attention to these conditions.

8) Warranties, exclusions and liability

8.1 Warranties

1. Each party warrants that it has the legal power and authority to enter into these Terms of Use and that these Terms of Use will be legally binding and enforceable against it.
2. All content and services available on or through the Application or Website are provided “as is” and “as available”and without any express or implied representation, warranty or guarantee of any kind, except those expressly required or implied by statute that cannot be excluded.
3. To the maximum extent permitted by law, KinChip excludes, and does not make any representation, warranty or guarantee of any kind, whether express or implied, in relation to the content, accuracy, completeness, accessibility, suitability, safety, security, reliability or any other aspect of:
   1. any content and/or information available on, in or through the Application, Website or Product;
   2. the performance and/or availability of the Application, Website or Product; or
   3. the loss, damage, corruption or degradation of any data, database, software or other material as a result of downloading, installing, accessing or using the Application or accessing or using the Website or Product.
4. You warrant that:
   1. you will not use the Application or Website for any commercial or other purpose that is not expressly permitted by these Terms of Use;
   2. you have obtained any necessary consents relating to the disclosure by you to us of any information, including personal information and sensitive information;
   3. the provision by you to us of any information, including personal information or sensitive information, does not infringe any Law or misappropriate or violate a third party’s rights of publicity or privacy; and
   4. our use of any information that you have provided to us, including personal information or sensitive information, in accordance with these Terms of Use will not:
      1. breach any Law;
      2. infringe the legal rights of any person; or
      3. give rise to any cause of action against the Supplier, in each case in any jurisdiction and under any applicable Law.
   5. You represent and warrant to us that each warranty contained in clause 8.1(d) is correct and not misleading on each date between (and including) the date that these Terms of Use come into effect and termination of these Terms of Use (as if made on each such day).
   6. Where legislation implies in these Terms of Use any guarantee, condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying application of or exercise or liability under such guarantee, condition or warranty, the guarantee, condition or warranty will be deemed to be included in these Terms of Use. However, the liability of KinChip for any breach of such guarantee, condition or warranty will be limited, at the option of KinChip, to one or more of the following:
      1. if the breach relates to goods:
         1. the replacement of the goods or the supply of equivalent goods;
         2. the repair of such goods;
         3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
         4. the payment of the cost of having the goods repaired; and
      2. if the breach relates to services:
         1. the supplying of the services again; or
         2. the payment of the cost of having the services supplied again.

8.2 Liability

1. To the maximum extent permitted by law, KinChip shall not be liable to you or any third party in respect of any Loss or for any loss or corruption of any data, database, software or other material as a result of:
   1. downloading, installing, accessing, displaying, or using the Application, Website or Product or participating in any online activities contained therein;
   2. using, relying on, or action taken as a result of any information or material available on, in or through the Application, Website or Product;
   3. any interruption, suspension or termination of the Application, Website or Product in whole or in part for any reason whatsoever, including failure or suspension of public or private telecommunication networks;
   4. the unavailability, unsuitability and non-connectivity of third party sites;
   5. any loss, damage, corruption or degradation of any data or other material as a result of the use of the Application, Website or Product and/or viruses or other technologically harmful material that may infect your Device due to your use of the Application, Website or Product; or
   6. a Security Breach.
2. To the maximum extent permitted by law, you waive, release, forgive, discharge and relinquish any and all claims that you may have against KinChip or its Related Parties in connection with, or arising out of, or incidental to, your access to or use of the Application or Website, including but not limited to downloading any information and materials in or from the Application or Website.
3. These Terms of Use do not exclude, nor do they purport to exclude, liability arising under statute if and to the extent that such liability cannot be lawfully excluded.

8.3 Indemnity

You indemnify the Indemnified Parties against any and all Loss arising directly or indirectly from:

1. you downloading, installing, using or accessing the Application;
2. you using or accessing the Website;
3. your use of or reliance on any information, content or material contained on, in or accessed through the Application or Website;
4. the provision by you to us of any information, including personal information and sensitive information;
5. our use of any information provided by you, including personal information and sensitive information, in accordance with these Terms of Use or our Privacy Policy;
6. a Security Breach;
7. breach by you of these Terms of Use;
8. breach by you of any Law or rights of a third party; and
9. any claim:
   1. made against an Indemnified Party by a third party alleging that any information that you have provided, including personal information and sensitive information, to us infringes a Law or the rights of a third party; and
   2. brought against an Indemnified Party by any third party relating to your use of the Application, Website or Product.

8.4 Independence of indemnities

1. Each indemnity in these Terms of Use is a continuing obligation, separate and independent from your other obligations and survives the termination of these Terms of Use.
2. It is not necessary for KinChip to incur expense or make a payment before enforcing any indemnity conferred by these Terms of Use.

9) Acknowledgements

You acknowledge that:

1. software is never wholly free from defects, errors and bugs and KinChip gives no warranty or representation that the Application, Website or Product will be wholly free from defects, errors and bugs;
2. software is never entirely free from security vulnerabilities and KinChip gives no warranty or representation that the Application, Website or Product will be entirely secure;
3. the information that the Application and Website collects may be stored locally on your Device and may be transmitted to our servers in Australia and/or other countries where KinChip, our affiliates or any of our service providers operate. The transmission of information over wireless and wired networks is not inherently secure and we do not guarantee that your personal information or private communications will always remain private when using the Application, Website or Product;
4. you acknowledge that you must take your own precautions to ensure that your access of the Application, Website or Product does not expose you to the risk of viruses, malicious code or other forms of interference which may damage your Device or otherwise cause you or any person to suffer loss, damage or corruption of data or other material;
5. certain maintenance or technical difficulties may result in your use or access of the Application, Website or Product being interrupted or suspended, either temporarily or permanently; and
6. KinChip can, at any time and without prior notice, remove or disable your Account or access to the Application, Website or Product for any reason.

10) International use

1. Although the Application, Website and Product may be accessible worldwide, to the maximum extent permitted by any applicable law, we make no representation, warranty or guarantee of any kind, whether express or implied, that anything contained on or through the Application, Website or Product are appropriate or available for use outside of, or comply with the laws of any jurisdiction other than, Australia.
2. You agree that you will not access the Application, Website or Product from jurisdictions where their contents are illegal or prohibited. In using or accessing the Application, Website or Product, you do so on your own initiative and are solely responsible for compliance with any applicable laws governing such use or access.
3. We do not purport to make any offer for any product, service, and/or information in connection with the Application, Website or Product where it is illegal or prohibited.

11) Disclaimer

1. Any information we provide on or through the Application, Website or Product is for information purposes only. It is not meant as a substitute for the advice of a doctor or other qualified health care professional.
2. You must not use the information available on or through the Application, Website or Product for diagnosing or treating a medical condition. Always seek the advice of your physician or other qualified health care professional regarding any questions you may have regarding medical symptoms or conditions.
3. Never disregard professional medical advice or delay in seeking it because of something you have read on the Application, Website or Product.

12) General

1. These Terms of Use are governed by and are to be construed in accordance with the laws applicable in Western Australia.
2. Each party irrevocably and unconditionally submits to the non‑exclusive jurisdiction of the courts exercising jurisdiction in Western Australia and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.
3. No forbearance, delay or indulgence by a party in enforcing the provisions of these Terms of Use will prejudice or restrict the rights of that party, nor will any waiver of those rights operate as a waiver of any subsequent breach.
4. Should any part of these Terms of Use be or become invalid, that part will be severed from these Terms of Use. Such invalidity will not affect the validity of the remaining provisions of these Terms of Use.
5. These Terms of Use contain the entire understanding between the parties as to the subject matter of this document.
6. In the event that these Terms of Use are translated into other languages and there is an inconsistency between the two language versions, the English language version shall prevail to the extent of that inconsistency.
7. KinChip may assign these Terms of Use or any part of them in its sole discretion. You may not assign these Terms of Use or any part of them.
8. No oral explanation or information provided by any party to another:
   1. affects the meaning or interpretation of this document; or
   2. constitutes any collateral agreement, warranty or understanding between any of the parties.
9. Unless expressed to the contrary, in this document:
   1. words in the singular include the plural and vice versa;
   2. if a word or phrase is defined its other grammatical forms have corresponding meanings;
   3. ‘includes’ means includes without limitation;
   4. no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it; and
   5. a reference to:
      1. a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation;
      2. any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced; and
10. Headings do not affect the interpretation of this document.

English Version Prevails

In the event that these Terms of Use are translated into other languages and there is an inconsistency between the two language versions, the English language version shall prevail to the extent of that inconsistency.

Assignment

KinChip may assign these Terms of Use or any part of them in its sole discretion. You may not assign these Terms of Use or any part of them.

Definitions

In this document these terms have the following meanings:

These Terms of Use were last updated 12 ^th March 2017.